Citation Nr: 0943656
Decision Date: 11/17/09 Archive Date: 11/25/09
DOCKET NO. 07-17 966 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. The propriety of the reduction of the Veteran's
disability evaluation for his service connected left knee
disability, to 10 percent.
2. Whether new and material evidence has been submitted
sufficient to reopen a claim of entitlement to service
connection for a right knee disability.
3. Entitlement to service connection for a cervical spine
disability.
4. Entitlement to service connection for a thoracic spine
disability.
(The issue of entitlement to a waiver of overpayment in the
calculated amount of $357.00 is the subject of a separate
decision.)
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. McBrine, Counsel
INTRODUCTION
The Veteran served on active duty from March to June 1987,
and from January 1988 to April 1992.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from February 2007 decisions by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida, that denied the Veteran's above
claims. A videoconference hearing before the undersigned
Veterans Law Judge was held in September 2009.
The issue of the propriety of the reduction of the Veteran's
disability evaluation for his service connected left knee
disability is addressed in the REMAND portion of the decision
below and is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. In a decision dated November 1999, the RO denied service
connection for a right knee disability.
2. The evidence received since the November 1999 RO decision
does relate to an unestablished fact necessary to
substantiate the claim of service connection for a right knee
disability.
3. A right knee disability is not shown to be causally or
etiologically related to any disease, injury, or incident in
service, nor did it manifest within one year of the Veteran's
discharge from service.
4. A cervical spine disability is not shown to be causally
or etiologically related to any disease, injury, or incident
in service, nor did it manifest within one year of the
Veteran's discharge from service.
5. A thoracic spine disability is not shown to be causally
or etiologically related to any disease, injury, or incident
in service, nor did it manifest within one year of the
Veteran's discharge from service.
CONCLUSIONS OF LAW
1. The November 1999 decision of the RO, which denied
service connection for a right knee disability, is final.
38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104, 20.302,
20.1103 (2009).
2. The evidence received since the November 1999 RO
decision, which denied service connection for a right knee
disability, is new and material and the claim for service
connection for a right knee disability is reopened. 38
U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009).
3. A right knee disability was not incurred in or aggravated
by the Veteran's active duty military service and may not be
presumed to have been incurred in or aggravated by service.
38 U.S.C.A. §§ 1101, 1110, 1112, 1131 (West 2002 & Supp.
2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009).
4. A cervical spine disability was not incurred in or
aggravated by the Veteran's active duty military service and
may not be presumed to have been incurred in or aggravated by
service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131 (West 2002 &
Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009).
5. A thoracic spine disability was not incurred in or
aggravated by the Veteran's active duty military service and
may not be presumed to have been incurred in or aggravated by
service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131 (West 2002 &
Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38
C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002).
Proper notice from VA must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
and (3) that the claimant is expected to provide in
accordance with 38 C.F.R. § 3.159(b) (1).
Under Kent v. Nicholson, 20 Vet. App. 1 (2006), the Veteran
must be apprised as to the requirements both as to the
underlying service connection claim and as to the definitions
of new and material evidence. Kent further requires that the
notice inform the Veteran as to the basis for the prior final
denial and as to what evidence would be necessary to
substantiate the claim.
Here, the duty to notify was satisfied by way of letters sent
to the Veteran in July 2006, March 2009, and September 2009.
These letters informed the Veteran of what evidence was
needed to establish the benefits sought, of what VA would do
or had done, and of what evidence the Veteran should provide.
Therefore, the Board finds that any notice errors did not
affect the essential fairness of this adjudication, and that
it is not prejudicial to the Veteran for the Board to proceed
to finally decide this appeal. The Veteran was also
specifically informed of the law as it pertains to disability
evaluations and effective dates by the July 2006 letter. See
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
The VA has also done everything reasonably possible to assist
the Veteran with respect to his claims for benefits, such as
obtaining medical records. Consequently, and particularly in
light of the fact that the Veteran's claim for a right knee
disability is being reopened, the Board finds that the duty
to notify and assist has been satisfied, as to the issue
being finally decided on this appeal.
Historically, the Board notes that the Veteran's claim of
entitlement to service connection for a right knee disability
was originally denied by a November 1999 RO decision. This
claim was denied at that time because no evidence had been
presented showing he had a current chronic right knee
disability related to service. As the Veteran did not
perfect an appeal of this decision, it is final. 38 U.S.C.A.
§ 7105 (West 2002); 38 C.F.R. § 3.104, 20.302, 20.1103
(2009).
Since this decision is final, the Veteran's current claim of
service connection for a right knee disability may be
considered on the merits only if new and material evidence
has been received since the time of the prior adjudication.
See 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156;
Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).
New evidence means existing evidence not previously submitted
to agency decisionmakers. Material evidence means existing
evidence that, when by itself or when considered with the
previous evidence of record, relates to an unestablished fact
necessary to substantiate the claim. New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. 38
C.F.R. § 3.156(a) (2008). In determining whether evidence is
new and material, the credibility of the new evidence is to
be presumed. Justus v. Principi, 3 Vet. App. 510, 513
(1992).
The Court has clarified that, with respect to the issue of
materiality, the newly presented evidence need not be
probative of all the elements required to award the claim.
Evans v. Brown, 9 Vet. App. 273 (1996). However, it is the
specified bases for the final disallowance that must be
considered in determining whether the newly submitted
evidence is probative. Id. Such evidence must tend to prove
the merits of the claim as to each essential element that was
a specified basis for that last final disallowance of the
claim. Id.
Taking into account all relevant evidence, the Board finds
that new and material evidence has been submitted sufficient
to reopen the Veteran's claim. Specifically, the Board notes
that the evidence of record now shows that the Veteran has a
right knee disability, and several statements from the
Veteran's friends and family indicate that they have
witnessed the Veteran have right knee problems since service.
As the Veteran's claim was previously denied because there
was no evidence he had any right knee disability related to
service, and as this evidence shows that he does have a right
knee disability which may be related to service, the Board
finds this evidence to be both new and material, and
therefore the Veteran's claim for service connection for a
right knee disability should be reopened. As such, the issue
of service connection for a right knee disability will be
discussed below.
Entitlement to service connection for right knee, cervical
spine, and thoracic spine disabilities.
In order to establish service connection for a claimed
disability, the facts must demonstrate that a particular
disease or injury resulting in current disability was
incurred during active service or, if pre-existing active
service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131;
38 C.F.R. § 3.303. Service connection may be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(b).
To prevail on the issue of service connection, there must be
medical evidence of (1) a current disability; (2) medical, or
in certain circumstances, lay evidence of in-service
incurrence or aggravation of a disease or injury; and (3)
medical evidence of a nexus between the claimed in-service
disease or injury and the present disease or injury. Hickson
v. West, 12 Vet. App. 247 (1999).
Where a Veteran served for at least 90 days during a period
of war or after December 31, 1946, and manifests certain
chronic diseases, such as arthritis, to a degree
of 10 percent within one year from the date of termination of
such service, such disease shall be presumed to have been
incurred or aggravated in service, even though there is no
evidence of such disease during the period of service.
38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.
The Board has considered whether presumptive service
connection for such chronic diseases is warranted. However,
the record fails to show that the Veteran manifested either
disease to a degree of 10 percent within the one year
following his service discharge in April 1992. Specifically,
the Board notes that a VA general medical examination
performed on the Veteran in June 1992, two months after his
separation from service, showed none of these claimed
disabilities. As such, presumptive service connection is not
warranted for a right knee disability, a cervical spine
disability, or a thoracic spine disability. 38 U.S.C.A.
§§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.
The Board further finds that, when taking into account all
relevant evidence, service connection is not warranted for
any of these disabilities on a direct basis as well. As to
the Veteran's right knee disability, while the Veteran does
currently have a right knee disability, no medical evidence
has been presented linking this disability etiologically to
service.
While the Veteran's service medical records show complaints
in service of a left knee disability, for which the Veteran
is service connected, the Veteran's service treatment
records, to include his report of separation examination from
service, dated February 1992, show no complaints of, or
treatment for, any right knee disability. Likewise, a June
1992 VA general medical examination did not show any
complaints of, or diagnosis of, any right knee disability.
The evidence of record subsequent to service does not show
even complaints of right knee pain until approximately,
arguably, May 1997, over five years after the Veteran's
separation from service, when an X-ray report of the
Veteran's knees shows that the Veteran was complaining at
that time of bilateral knee pain. However, while the Veteran
apparently complained of pain in his right knee, the
Veteran's right knee X-ray was completely normal, and the
Veteran was not diagnosed with any right knee disability at
that time. The Court has held that a symptom, alone, without
a diagnosed or identifiable underlying malady or condition,
does not in and of itself constitute a disability.
Without a pathology to which the symptoms of a right knee
disability can be attributed, there is no basis to find a
right knee disability for which service connection may be
granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285
(1999) ("pain alone, without a diagnosed or identifiable
underlying malady or condition, does not in and of itself
constitute a disability for which service connection may be
granted."); dismissed in part and vacated in part on other
grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed.
Cir. 2001). The Court has held that Congress specifically
limited entitlement to service connected benefits to cases
where there is a current disability. "In the absence of
proof of a present disability, there can be no valid claim."
Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus this
evidence does not show an actual right knee disability.
The evidence of record does not show that the Veteran was
diagnosed with an actual right knee disability until May
2007, over 15 years after the Veteran's separation from
service, when the Veteran was diagnosed with bilateral knee
patellofemoral syndrome with chondromalacia. Since that
time, the Veteran has stated, both in his hearing testimony
in September 2009, to medical professionals in the course of
medical treatment, and apparently to family and friends, that
he injured his right knee in service at the same time that he
injured his left knee. However, there is simply no medical
evidence of record showing that he injured his right knee in
service, and no medical opinion evidence of record linking
this disability to service. A statement of the Veteran's
self-reported medical history as recited by a medical
professional is not an actual medical opinion. And while the
Board recognizes that the many family and friends who have
submitted statements on the Veteran's behalf are competent to
testify to the fact that they witnessed the Veteran appear to
have pain in his right knee, they are not competent to
testify as to whether the Veteran's currently diagnosed knee
disability is etiologically related to service.
As such, with no evidence of a right knee disability in
service, or any diagnosis of a right knee disability for more
than 15 years after service, and with no medical opinion
evidence of record linking the Veteran's current right knee
disability to service, the Board finds that the preponderance
of the evidence of record is against a grant of service
connection for a right knee disability.
As to the Veteran's cervical and thoracic spine disabilities,
again, while the Veteran does currently have diagnosed
cervical and thoracic spine disabilities, no medical evidence
has been presented linking these disabilities to service.
The Veteran, on his February 1992 report of medical history,
indicated that he had complaints of occasional back pain
secondary to a strain, which he treated with over the counter
medication. However, the remainder of the Veteran's service
treatment records, to include his February 1992 report of
separation examination, show no complaints of, treatment for,
or diagnosis of, any back disability. Further, the Veteran's
June 1992 report of VA general medical examination did not
show that the Veteran complained of any back pain at that
time, and was noted to jog several miles a week. The Veteran
was not diagnosed with any back disability at that time.
Thus, while it appears the Veteran may have had a back strain
in service, there is no evidence showing that the Veteran
sustained a chronic back disability in service, as none was
found during the Veteran's service, or for many years after.
In fact, there is no evidence of record showing a diagnosis
of any chronic back disorder dated any earlier than November
2005, over 13 years after the Veteran's separation from
service, showing any chronic back disability. At that time,
the Veteran was diagnosed with degenerative disc disease of
the thoracic and cervical spines, however, these disabilities
were not at that time linked to service. Since that time,
the Veteran has stated, as with his right knee disability,
both in his hearing testimony, to medical professionals in
the course of medical treatment, and apparently to family and
friends, that he injured his back in service. However, there
is simply no medical evidence of record showing that he
injured either his thoracic or his cervical spine in service,
and no medical opinion evidence of record linking this
disability to service. As noted above, a statement of the
Veteran's self-reported medical history as recited by a
medical professional is not an actual medical opinion. And
while the Board recognizes that the many family and friends
who have submitted statements on the Veteran's behalf are
competent to testify to the fact that they witnessed the
Veteran appear to have pain in his back, they are not
competent to testify as to whether the Veteran's currently
diagnosed cervical and thoracic spine disabilities are
etiologically related to service.
As such, with no evidence of a chronic back disability in
service, or any diagnosis of any back disability for more
than 13 years after service, and with no medical opinion
evidence of record linking the Veteran's current thoracic and
cervical spine disabilities to service, the Board finds that
the preponderance of the evidence of record is against a
grant of service connection for either a thoracic or a
cervical spine disability.
As the preponderance of the evidence is against all these
claims, the benefit-of-the-doubt doctrine does not apply, and
they must be denied. 38 U.S.C.A. § 5107(b) (West 2002);
Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990).
ORDER
New and material evidence having been submitted; the
Veteran's claim of entitlement to service connection for a
right knee disability is reopened; service connection for a
right knee disability is denied.
Entitlement to service connection for a cervical spine
disability is denied.
Entitlement to service connection for a thoracic spine
disability is denied.
REMAND
As to the Veteran's service connected left knee disability,
the Board notes that the Veteran has indicated several times,
both in statements in his claims file, and during his hearing
testimony before the Board in September 2009, that his left
knee disability has markedly increased in severity since his
last VA examination. Since it has been over three and a half
years since the Veteran's last examination for this service
connected disability, and since the Veteran has indicated
that he believes this disability has increased in severity
since his last VA examination, the Board is of the opinion
that the Veteran should be provided with another VA
examination to address the current level of severity of his
service connected left knee disability.
Accordingly, the case is REMANDED to the AMC for the
following action:
1. The Veteran should be scheduled for a
VA examination in order to determine
the current severity of his service
connected left knee disability. The
claims folder and a copy of this Remand
must be made available to the examiner
for review before the examination. Any
testing deemed necessary should be
performed. The examiner must
specifically comment on the Veteran's
level of functional impairment as per
DeLuca, if any, due to his service
connected disabilities.
2. Thereafter, the AMC should re-
adjudicate the Veteran's claim of
entitlement to an increased rating for
his service connected left knee
disability. If any benefits sought are
not granted, the Veteran should be
furnished a supplemental statement of
the case and an opportunity to respond.
The case should then be returned to the
Board, if in order.
The Veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999). No action is required of
the Veteran until he is notified by the RO; however, the
Veteran is advised that failure to report for any scheduled
examination may result in the denial of his claim. 38 C.F.R.
§ 3.655 (2008). Thereafter, the case should be returned to
the Board, if in order.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs